SVn^U  eyaUt^  suppUiit"  lik**fcf* 


LSC 
UNC-CH 


Cfce  Htbrarp 

of  tije 

WLnitexxitv  of  iSorti)  Carolina 


Cnbotoeti  tip  Cijc  dialectic 


anb 


.  ;    ,  -'*. 


This  BOOK  may  be  kept  out  TWO 
WEEKS  ONLY,  and  is  subject  to  a  fine 
of  FIVE  CENTS  a  day  thereafter.  It  was 
taken  out  on  the  day  indicated  below : 


2  Ag  '2? 


29Jano 


10*173 


e, 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00019187979 


SHALL  EQUALITY  SUPPLANT  LIBERTY? 


REVIEW    OF    MR.   SUMNER'S    BILL    AND    SPEECH. 


The  cardinal  proposition  in  the  Declaration  of  Inde- 
pendence, "  that  all  men  are  created  equal,"  taken  with 
its  context,  is  a  very  plain  and  self-evident  one.  Sophistry 
has  been  employed  to  show  that  it  implies  equality  in 
physical  strength  and  beauty;  in  wealth  and  social  advan- 
tages; in  moral  and  intellectual  endowments.  But  the 
candid  common  sense  of  the  American  people  never  for  a 
moment  understood  the  phrase  to  mean  anything  different 
from  what  is  taught  in  the  Old  and  New  Testaments, 
that  God  is  no  respecter  of  persons;  that  all  men  are  to  be 
held  accountable  at  the  bar  of  eternal  justice,  and  to  be 
weighed  in  the  same  moral  scales,  measured  by  the  same 
standards  of  truth  and  equity.  The  phrase  also  manifestly 
implies  that  human  laws  and  tribunals  should  be  equally 
just  with  the  divine,  and  .that  in  meting  out  justice  be- 
tween man  and  man,  no  discriminations  should  be  made 
on  account  of  wealth,  talents,  ancestry,  race,  or  color.  The 
whole  passage,  taken  together,  necessarily  implies  this,  and 
nothing  else.     It  is  as  follows: 

"  We  hold  these  truths  to  be  self-evident,  that  all  men 

*  are  created  equal ;  that  they  are  endowed  by  their  Cre- 

*  ator  with  certain  inalienable  rights';  that  among  these  are 
'  life,  liberty,  and  the  pursuit  of  happiness." 

The  purpose  of  those  who  would  have  us  believe  that 
the  statement  implies  a  moral  and  intellectual  equality  is 
easily  understood.  They  simply  mean  to  bring  the  basis 
of  American  institutions  into  contempt  and  ridicule,  by 
showing  it  to  be  absurd,  and  that  it  leads  to  the  destruction 
of  all  distinctions  between  virtue  and  vice;  between  igno- 
rance and  culture;  and  between  character  and  the  want  of 
it.     This  perversion  of  the  Declaration  of  Independence 


originated  with  English  Tories,  who  were  naturally  averse 
to  the  principles  of  liberty;  and  during  the  late  slavery 
controversy  it  was  adopted  by  the  defenders  of  that  insti- 
tution. Happily,  it  has  been  exploded  with  the  system 
itself;  and  all  men,  in  every  part  of  the  Union,  are  begin- 
ning to  go  back  to  the  sober,  common-sense  view  of  our 
great  charter  which  universally  prevailed  in  revolutionary 
times. 

It  is  to  be  lamented  that  so  conspicuous  a  champion  of 
liberty  as  Mr.  Sumner,  by  pushing  his  theories  of  "  equality 
before  the  law"  to  an  unwarrantable  extreme,  has  to  some 
extent  given  countenance  to  the  misrepresentations  of  the 
sophists  referred  to  above.  He  is  not  content  with  giving 
equal  liberty  to  black  men;  but,  in  the  name  of  equality, 
he  insists  on  laying  at  their  feet  some  of  the  most  sacred 
rights  of  white  men.  This  I  propose  to  show  in  a  brief 
review  of  his  "Civil  Rights"  amendment  to  the  Amnesty 
bill.     The  first  section  is  as  follows: 

"  That  all  citizens  of  the  United  States,  without  distinc- 
4  tion  of  race,  color,  or  previous  condition  of  servitude,  are 
4  entitled  to  the  equal  and  impartial  enjoyment  of  any  ac- 
4  commodation,  advantage,  facility,  or  privilege  furnished 
1  by  common  carriers,  whether  on  laud  or  water;  by  inn- 
4  keepers ;  by  licensed  oicners,  managers,  or  lessees  of  theaters  or 
4  other  places  of  public  amusement;  by  trustees,  commission- 
4  ers,  superintendents,  teachers,  or  other  officers  of  common 
4  schools,  and  other  public  institutions  of  learning,  the  same 
4  being  supported  by  moneys  derived  from  general  taxation 
4  or  authorized  by  law ;  by  trustees  or  officers  of  church  organiza- 
4  tions,  cemetery  associations,  and  benevolent  institutions  incor- 
porated by  national  or  State  authority;  and  this  right  shall 
4  not  be  denied  or  abridged  on  any  pretense  of  race,  color, 
4  or  previous  condition  of  servitude." 

The  remaining  sections  impose  heavy  pains  and  penal- 
ties, consisting  of  fines  and  imprisonment  in  the  peniten- 
tiary for  years  for  the  violation  of  the  provisions  of  this 
first  section.  I  have  italicized  the  most  objectionable 
features  of  the  section,  but  shall  have  occasion  to  com- 
ment on  other  portions  of  it. 

I  am  not  disposed  to  dispute  the  proposition,  that  all  citi- 
zens are  entitled  to  the  il  enjoyment  of  any  accommodation, 
advantage,  facility,  or  privilege  furnished  by  common  car- 


riers,"  especially  by  such  as  carry  the  mails,  or  in  any  way 
are  supported  by  the  Government,  or  enjo}^  special  privi- 
leges. All  people  are  entitled  to  the  use  of  the  public 
highways.  The  railroad  companies  not  onty  carry  the 
mails,  but  they  have  chartered  privileges,  such  as,  that  no 
other  road  shall  be  constructed  too  near  them.  They  also 
had  the  privilege  of  cutting  their  way  through  the  lands 
of  the  people,  on  payment  of  damages  fixed  by  others 
than  the  owners  of  the  lands;  and  hence,  the  whole  peo- 
ple have  acquired  the  right  to  travel  on  them.  The  stage 
lines  are  in  large  measure  supported  by  their  contracts  for 
carrying  the  mails,  and  the  right  of  every  citizen  who  can 
pay  his  way  to  travel  in  them  is  thus  secured.  The  duty  of 
steamboats  which  do  not  carry  the  mails  to  transport  all 
passengers  who  apply,  is  not  apparent,  since  they  are  strictly 
private  enterprises.  The  rivers  are  open  to  the  public,  and 
anybody  who  is  able,  may  run  a  boat  from  any  one  point 
to  another.  They  are  licensed  and  taxed,  but  that  is  a 
poor  privilege,  and  they  should  not  on  that  account  be 
compelled  to  take  unwelcome  guests  on  board. 

That  public  schools,  supported  by  taxation,  ought,  as  a 
general  rule,  to  be  free  to  all,  there  can  be  no  doubt.  But 
circumstances  may  make  it  expedient  to  have  separate 
schools  for  different  classes;  and  in  this  case  there  ought 
to  be  perfect  equality  in  the  distribution  of  the  school  fund. 
Each  class  of  society  should  have  its  proportion,  according 
to  its  numbers.  As  an  illustration,  I  will  take  the  case  of 
North  Carolina,  with  whose  arrangements  in  this  respect 
I  am  most  familiar.  About  two-thirds  of  the  population 
are  whites,  and  one-third  blacks  or  of  African  descent. 
The  whites,  therefore,  have  the  control  of  the  question  of 
public  schools  in  their  own  hands.  They  can  establish 
public  schools,  or  they  can  leave  the  business  of  education 
to  be  looked  after  by  the  people  in  their  individual  and 
social  capacities.  In  the  exercise  of  their  discretion,  they 
decided  to  have  public  schools,  but  on  these  terms,  viz: 
that  there  shall  be  separate  schools  for  the  whites,  and  sep- 
arate schools  for  the  blacks,  equally  provided  for  by  tax- 
ation. This  plan  was  adopted  by  the  Radical  Republican 
party  when  four-fifths  of  the  Legislature  were  with  it. 


4 

The  Democrats  and  Conservatives,  of  course,  acquiesced 
in  and  approved  the  plan,  so  that  it  was  unanimously 
adopted.  Even  the  colored  people  approve  of  it,  conscious 
that  it  is  the  only  feasible  plan  of  public  education — the 
only  one  by  which  their  children  can  be  educated.  In 
point  of  fact,  nearly  all  the  school,  as  well  as  the  other 
taxes,  are  paid  by  the  white  people.  The  poll  tax,  which 
is  mainly  devoted  to  the  public  schools,  is  not  collected 
from  the  blacks  in  half  the  cases. 

I  believe  that  the  plan  adopted  in  North  Carolina  has 
been  generally  fallen  upon  in  the  South,  where  a  common 
school  system  exists;  and  it  is  manifest  that  the  enactment 
of  Mr.  Sumner's  bill  into  a  law  will  tend  to  destroy  the 
educational  systems  of  the  South.  The  white  people  will 
not  sustain  a  system  of  mixed  schools;  and  his  bill  should 
be  entitled,  "An  act  to  break  up  the  common  schools  of 
the  country." 

A  common  school  system  is  not  a  public  necessity,  it  is 
not  an  institution  essential  to  an  organized  society,  like 
a  judiciary  or  an  executive. 

The  first  half  century  of  our  national  existence  passed 
away  before  any  State  south  of  Mason  and  Dixon's  line 
had  a  system  of  common  schools.  Contrasting  the  great 
statesmen  of  the  past  with  the  small  politicians  of  the  pres- 
ent day,  the  southern  people  have  not  before  their  eyes,  in 
any  part  of  the  Union,  the  most  conclusive  argument  in 
favor  of  the  common  school  system.  Will  Mr.  Sumner 
weaken  the  argument,  and  strengthen  the  southern  preju- 
dice against  New  England's  peculiar  institution,  by  at- 
tempting to  enforce  by  federal  authority  a  most  repulsive 
uniformity? 

The  statesman  is  not  called  upon  to  determine  the  eth- 
nological and  moral  questions  which  have  been  mooted,  as 
to  the  relative  merits  of  the  white  and  black  races.  He 
should  see  to  it  that  they  have  equal  rights  and  equal  ad- 
vantages of  public  education ;  but  it  is  no  part  of  his  duty 
to  force  the  two  races  into  a  repulsive  social  contact.  It  is 
a  recognized  principle  of  constitutional  law  that  women 
are  citizens;  and  their  personal  rights  are  as  sacredly  pro- 
tected by  law,  but  not  more  so,  than  those  of  men ;  yet  it 


is  only  within  a  few  years  that  any  of  them  have  been  ad- 
mitted into  colleges,  dedicated  to  the  education  of  the  male 
sex.  They  are  not  now  admitted  into  anj7  such  institution 
as  a  matter  of  legal  right — not  even  into  Harvard.  In  like 
manner  males  are  never  admitted  into  institutions  devoted 
to  the  education  of  females. 

The  reason  for  this  separation  of  the  sexes  is  founded  in 
expediency.  There  are  those  who  are  beginning  to  doubt 
and  deny  the  expediency;  but  thus  far  the  common  sense 
of  the  country  and  of  the  world  is  on  the  side  of  separate 
schools  for  the  sexes. 

But  if,  for  reasons  of  expediency,  separate  schools  may 
be  established  for  males  and  for  females,  who  are  only  dif- 
ferent classes  of  citizens,  why  may  not  expediency  dictate 
the  separation  of  other  classes  in  the  process  of  education? 
It  is  true  that  Mr.  Sumner,  in  his  bill  and  in  his  speech, 
very  logically,  from  his  premises,  ignores  the  right  to  sepa- 
rate the  sexes  while  at  school.  If  it  becomes  a  law,  no 
female  institution  in  the  country  "authorized  bylaw"  can 
maintain  its  exclusive  character.  Its  "trustees,  commis- 
sioners, superintendents,  teachers,  or  other  officers"  are 
commanded,  on  pain  of  fine  and  imprisonment,  not  to  ex- 
clude any  "citizen  of  the  United  States"  from  the  "equal 
and  impartial  enjoyment  of  any  accommodation,  advantage, 
falicity,  or  privilege  furnished"  by  the  same.  He  may  not 
have  intended  to  make  this  sweeping  eflaeement  of  the  dis- 
tinctions of  sex,  yet  so  his  bill  reads,  and  so  his  argument 
runs. 

But  supposing  the  intent  and  purport  of  his  bill  to  be 
different,  and  that  it  admits  of  separate  schools  for  the 
sexes;  and  it  follows,  that  he  allows,  from  motives  of  ex- 
pediency, an  infringement  of  contitutional  rights,  as  he 
construes  them.  Females  are  only  citizens,  and  not  citi- 
zens of  the  highest  order,  since  they  cannot  vote;  yet,  if  I 
have  misconstrued  Mr.  Sumner's  bill,  he  would,  in  that 
alternative,  allow  them  to  have  separate  schools,  from  the 
enjoyment  of  which  other  citizens  are  excluded.  And  this 
is  enough.  It  admits,  on  this  construction,  the  propriety 
and  expediency  of  separate  schools  for  different  classes  of 
citizens;  and  it  is  not  for  him  to  determine  that  no  other 


classes  shall  be  separated.  The  question  is  one  of  consti- 
tutional right.  If,  on  the  other  hand,  he  means  by  his  bill 
to  sweep  away  the  distinctions  of  sex  as  well  as  race,  I  can 
in  that  view  leave  the  case  in  the  hands  of  the  whole 
American  people,  confident  that  no  considerable  number 
of  them  will  favor  the  gross  idea  of  introducing  rude  boys, 
whether  white  or  black,  into  those  nurseries  of  refinement 
and  culture — the  female  seminaries,  colleges,  and  convents 
of  the  country. 

It  will  have  been  observed  that  Mr.  Sumner's  bill  not 
merely  guarantees  the  right  of  all  citizens  to  admission  into 
all  schools  founded  on  or  supported  by  taxation,  but  to  all 
that  are  "authorized  by  law;"  in  other  words,  to  all  acad- 
emies, colleges,  and  schools  that  have  been  chartered  by 
national  or  State  authority;  though  the  charter  is  nothing 
more  than  a  right  to  sue  and  be  sued,  and  to  have  per- 
petual succession  in  its  otficers.  The  endowment  may 
have  been  given  by  private  parties  for  a  specific  purpose : 
as,  for  instance,  to  educate  females ;  to  educate  men  for 
the  ministry  in  a  particular  church;  to  educate  orphans  of 
a  particular  class  and  locality.  It  is  no  matter.  Mr. 
Sumner's  "  Thorough"  sweeps  away  all  these  private,  de- 
nominational, and  local  rights,  in  order  to  establish  his 
system  of  universal  "  equality." 

In  this  connection  I  will  remark,  that  the  demand  of  the 
Catholics  to  have  separate  common  schools  has  been  ac- 
quiesced in  by  the  State  of  New  York  and  by  other  north- 
ern communities,  while  the  resistance  to  the  demand  was 
never  founded  in  constitutional  scruples,  that  I  am  aware 
of.  It  has  been  contended  by  the  Protestants  that  a  de- 
nominational separation  of  the  school  fund  would  dissipate 
and  destroy  its  efficiency,  while  the  Catholic  justly  claims 
that  he  ought  not  to  be  taxed  for  the  support  of  a  system 
of  education  which  he  deems  hostile,  to  his  religion.  I 
understand  that  this  was  the  view  taken  by  Mr.  Seward 
when  Governor,  and  that  he  sanctioned  the  separation  of 
the  school  fund. 

In  his  zeal  for  "equality"  Mr.  Sumner  will  invade  the 
sacred  precincts  of  the  church,  and  unveil  the  nrysteries  of 
the  Masonic  and  Odd  Fellows'  lodges.     The  churches  are 


nominated  in  the  bill,  and  their  officers,  from  the  bishop 
and  clergy  to  the  sexton,  are  warned,  as  they  would  escape 
the  felon's  doom  and  companionship,  not  to  exclude  any 
"  citizen  of  the  United  States  "  from  "  the  equal  and  im- 
partial enjoyment  of  any  accommodation,  advantage, 
facility,  or  privilege  furnished"  by  them.  In  other  words, 
the  several  churches  must  sell  or  rent  pews  to  any  citizen 
who  applies,  although  his  views  may  be  antagonistic  to  the 
church,  and  his  real  purpose  be  to  vote  out  the  vestry,  the 
trustees,  or  committee  of  management,  by  whatever  name 
called.  Indeed,  it  is  not  clear  that  a  bishop  could  refuse 
the  rite  of  confirmation,  or  a  clergyman  the  sacrament  of 
the  Lord's  supper,  to  a  "citizen  of  the  United  States" 
under  this  system  of  leveling  equality.  It  may  be  said 
that  the  closing  sentence  of  the  section  qualifies  what 
precedes,  and  that  the  denial  of  right  is  not  to  be  based  on 
the  fact  of  "race,  color,  or  previous  condition  of  servi- 
tude;" but  in  view  of  the  very  positive  and  unqualified 
language  of  the  body  of  the  section,  which  declares  "that 
all  citizens  of  the  United  States,  without  distinction  of 
race,  color,  or  previous  condition  of  servitude,  are  entitled 
to  the  equal  and  impartial  enjoyment  of  any  accommoda- 
tion, advantage,  facility,  or  privilege  furnished"  by  the 
churches,  it  will  be  deemed  dangerous  to  rely  on  the  final 
clause  as  a  safeguard  against  fine  and  imprisonment. 

If  this  bill  should  become  law,  it  will  be  needless  to 
amend  the  Constitution,  as  has  been  suggested,  by  a  clause 
recognizing  the  being  of  God  and  the  truth  of  Christianity. 
What  its  author  proposes  is  the  union  of  Church  and  State; 
the  enforced  conformity  of  all  denominations  with  his 
standard  or  "equality."  Whatever  else  the  churches  may 
put  into  their  creeds,  they  must  not  hold  that  any  citizen 
of  the  United  States,  whether  Jew  or  infidel,  black  or 
white,  is  not  good  enough  to  take  his  seat  with  the  elders 
and  disciples  at  the  communion  table. 

In  vain  the  Constitution  of  the  United  States  and  those 
of  the  separate  States  have  guarantied  the  most  perfect 
freedom  of  worship;  in  vain  has  a  complete  and  perpetual 
separation  of  Church  and  State  been  declared.  These 
sacred  rights  of  the  individual  to  worship  God  according 


8 

to  the  dictates  of  his  conscience,  and  of  classes  of  in- 
dividuals to  associate  themselves  together  for  the  purpose, 
are  to  be  invaded,  and  to  give  way  to  the  higher  demands 
of  "  equality."  He  heads  the  pamphlet  edition  of  his 
speech  with  the  taking  title  "Equality  before  the  Law," 
but  his  bill  puts  equality  against  the  law,  above  the  law, 
and  against  the  rights  of  the  citizen. 

The  Masons  and  Odd  Fellows  are  in  like  predicament 
with  the  churches,  being  described  as  "  benevolent  insti- 
tutions, incorporated  by  national  or  State  authority."  They 
will  have  no  alternative,  but  must  surrender  up  their  hid- 
den mysteries  to  the  first  comer  who  can  show  his  claim 
to  citizenship.  If  he  should  be  a  citizen  of  African  de- 
scent, the  danger  of  black-balling  him  will  be  great,  for  it 
will  be  for  a  court  and  jury  chosen  in  some  of  1he  States 
by  a  majority  of  colored  voters  to  say  whether  he  was 
black-balled  on  account  of  his  character  or  on  account  of 
his  "race,  color,  or  previous  condition  of  servitude."  If 
the  latter  conclusion  should  be  reached,  the  whole  lodge 
must  go  to  jail,  besides  paying  a  heavy  fine;  for  it  is  not  to 
be  presumed  that  they  would  ferret  out  and  "  deliver  up  " 
the  recusant  black-baller. 

The  effect,  if  not  the  purpose  of  the  bill,  is  to  take  from 
the  people  all  right  to  indulge  their  private  and  peculiar 
tastes.  Under  its  provisions  there  could  not  be  a  social 
club  of  gentlemen,  a  ladies'  sewing  soctety,  a  boat  club,  a  de- 
bating club,  a  shooting  club,  or  any  other  organization,  for 
pleasure,  for  business,  for  religion,  or  for  benevolence,  hav- 
ing corporate  rights,  but  it  must  be  invaded  with  this  level- 
ing principle  of  "  equality,"  which  takes  away  all  individual 
liberty,  and  becomes  despotism  in  its  most  odious  form. 

I  now  come  to  the  consideration  of  the  obligations  im- 
posed upon  innkeepers  and  theatrical  managers  and  lessees. 
And  first,  the  innkeepers.  I  give  Mr.  Sumner's  authorities 
as  presented  by  himself.     He  says  : 

"The  summary  of  our  great  jurist,  Mr.  Justice  Story, 
'  shows  the  law: 

" '  An  innkeeper  is  bound  to  take  in  all  travellers  and  way- 
i  faring  persons  and  to  entertain  them,  if  he  can  accommodate 
1  them,  for  a  reasonable  compensation.' 


"'If  an  innkeeper  improperly  refuses  to  receive  or  pro- 
'  vide  for  a  guest,  he  is  liable  to  be  indicated  therefor.' — 
'  Story's  Commentaries  on  the  Law  of  Bailment,  §  476. 

"  Chancellor  Kent  states  the  rule  briefly,  but  with  fullness 
'  and  precision : 

" '  An  innkeeper  cannot  lawfully  refuse  to  receive  guests 
'  to  the  extent  of  his  reasonable  accommodations,  nor  can 
'  he  impose  unreasonable  terms  upon  them.' — Kent's  Com- 
'  mentaries,  vol.  2,  p.  592. 

"  This  great  authority  says  again,  quoting  a  decided  case  : 

"  'Innkeepers  are  liable  to  an  action  if  they  refuse  to  re- 
'  ceive  a  guest  without  just  cause.  The  innkeeper  is  even 
'  indictable  for  the  refusal,  if  he  has  room  in  his  house  and 
'  the  guest  behaves  properly.' — Ibid.,  p.  595. 

"And  Professor  Parsons,  in  his  work  on  Contracts,  so 
'  familiar  to  lawyers  and  students,  says: 

'"  He  cannot  so  refuse  unless  his  house  is  full  and  he  is 
'  actually  unable  to  receive  them.  And  if  on  false  pretense 
'  he  refuses,  he  is  liable  to  an  action.' — Parsons  on  Contracts, 
'p.  627. 

"  The  importance  of  this  rule  in  determining  present  duty 
'  will  justify  another  statement  in  the  language  of  a  popular 
'  Encyclopedia: 

"  '  One  of  the  incidents  of  an  innkeeper  is,  that  he  is  bound 
'  to  open  his  house  to  all  traveller's,  without  distinction,  and,  has  no 
'  option  to  refuse  such  refreshment,  shelter,  and  accommodation  as 
'  he  possesses,  provided  the  person  who  applies  is  of  the  cle- 
'  scription  of  a  traveller,  and  able  and  ready  to  pay  the  cus- 
'  tomary  hire,  and  is  not  drunk  or  disorderly  or  tainted  with 
'  infectious  disease.' — Chamber's'  Encyclopedia,  article  Inn. 

"And  the  Encyclopedia  adds  : 

"'As  some  compensation  for  this  compulsory  hospitality 
'  the  innkeeper  is  allowed  certain  privileges.' 

A  reader  not  accustomed  to  legal  studies  might  draw  the 
inference  from  these  authorities,  as  they  are  quoted  by  Mr. 
Sumner,  that  they  state  what  is  now,  and  has  always  been, 
the  law  of  this  whole  land,  North  and  South.  Indeed,  im- 
mediately following  the  foregoing  citations  he  declares  that 
this  is  the  case.     He  says  : 

"  'Thus  is  the  innkeeper  under  constraint  of  law,  which 
1  he  must  obey ;  '  bound  to  take  in  all  travellers  and  wayfar- 


10 

*  ing  persons; '  '  nor  can  he  impose  unreasonable  terms  upon 
'  them; '  and  liable  to  an  action  and  even  to  an  indictment 
'  for  refusal.     Such  is  the  law.' 

"'  With  this  peremptory  rule  opening  the  doors  of  inns 
4  to  all  travellers,  without  distinction,  to  the  extent  of  author- 
'  izing  not  only  an  action,  but  an  indictment  for  the  refusal 
'  to  receive  a  traveller,  it  is  plain  that  the  pending  bill  is  only 

*  declaratory  of  existing  law,  giving  to  it  the  sanction  of 
'  Congress.'" 

In  the  first  place,  Justice  Story  expressly  states,  in  the 
preface  to  the  work  quoted,  that  it  is  a  treatise  on  the  Eng- 
lish common  law  of  bailment;  and  he  refers  much  of 
it,  in  its  origin,  to  the  Roman,  or  civil  law.  There  is  not 
more  than  one  reference  to  American  law  in  his  chapter 
on  innkeepers,  and  that  has  no  relation  to  the  question  in- 
volved. And  Mr.  Sumner,  who  is  so  thoroughlj7  acquainted 
with  the  Constitution  and  laws  of  the  United  States,  ought 
to  have  stated  in  his  speech  that  the  common  law  is  not  the 
law  of  the  federal  Government.  That  the  Constitution  does 
not  recognize  it ;  and  that  the  federal  courts  have  no  com- 
mon-law jurisdiction.  Perhaps  all  of  the  States,  except 
Louisiana,  have  adopted  the  common  law,  so  far  as  it  is 
consistent  with  their  respective  constitutions,  laws,  and 
circumstances;  but  no  further.  Not  one  of  them,  except 
perhaps  Massachusetts  and  Vermont — and  they  only  with- 
in a  few  years — ever  gave  negroes  the  benefits  of  common- 
law  rights  to  their  full  extent. 

In  the  second  place,  although  the  English  common  law 
of  bailment  is  generally  received  in  this  country,  that  por- 
tion of  it  which  requires  an  innkeeper  to  open  his  house 
to  all  travellers,  without  distinction  of  race,  "provided  the 
person  who  applies  is  of  the  description  of  a  traveller,  and 
able  to  pay,"  &c,  has  never  been  the  law  in  the  United 
States — not  even  in  Massachusetts — until  recent  years,  if 
at  all;  for,  from  an  incidental  remark  in  the  Senator's 
speech,  one  would  infer  that  the  laws  of  that  State  are  still 
dictated  by  what  he  denouuces  as  the  "  barbarous  tyranny  " 
of  slavery,  which  he  declares,  still  stalks  in  the  Senate 
chamber. 

I  proceed  to  establish  these  propositions  by  historical 
facts,  which  Mr.  Sumner  will  not  dispute,  and  which  are 


11 

within  the  vivid  recollection  of  the  present  generation.  T 
begin  with  Massachusetts,  in  which  State  the  abolition  of 
slavery  is  coeval  with  the  adoption  of  her  constitution  in 
1780.  Six  years  afterwards,  in  1786,  her  legislature  pro- 
hibited intermarriages  between  whites  and  blacks,  or  per- 
sons of  African  descent.  In  1834,  after  Mr.  Garrison  com- 
menced the  agitation  of  the  slavery  question,  the  Legislature^ 
refused  to  repeal  this  law.  In  1843,  however,  the  prohibi- 
tion was  abolished.  My  authority  for  this  and  the  follow- 
ing statements  in  regard  to  the  condition  of  the  colored 
people  is  Mr.  Hurd,  who  has  published  two  interesting 
volumes  in  Boston  on  the  "bondage  and  freedom"  of 
the  negro  race.  He  presents  other  facts  in  the  history  of 
Massachusetts,  showing  that  although  she  was  foremost  in 
abolishing  slavery,  she  for  a  long  time  retained  on  her 
statute-books  very  grievous  disabilities  founded  on  the 
color  of  the  skin. 

Similar  laws  against  intermarriages  were  passed  in  Maine 
in  1821,  the  year  after  the  State  government  was  organ- 
ized, and  they  were  not  repealed  up  to  the  period  of  the 
rebellion.    They  are  doubtless  still  in  force. 

In  Connecticut  the  elective  franchise  was  taken  away 
from  the  colored  people  in  1818,  and  never  restored  until 
since  the  adoption  of  the  XVth  Amendment  to  the  Consti- 
tution of  the  United  States.  Negroes  from  other  States 
were  not  allowed  to  attend  school  in  Connecticut. 

The  same  exclusion  from  the  polls  was  adopted  and  en- 
forced in  Pennsylvania  and  New  Jersey,  accompanied  with 
other  degrading  disabilities,  such  as  a  disqualification  to  tes- 
tify against  whites.  They  were  never  removed  by  the  peo- 
ple of  those  States  until  since  the  war. 

In  New  York  a  property  qualification  was  made  the 
condition  of  suffrage  for  black  men,  while  no  such  condi- 
tion was  imposed  on  the  whites.  This,  with  other  dis- 
abilities, were  removed  by  the  XVth  Amendment. 

Ohio,  Indiana,  Illinois,  Michigan,  Wisconsin,  and  Iowa 
not  only  excluded  persons  of  African  descent  from  the 
polls  and  from  the  witness-box,  where  whites  are  parties, 
and  forbade  intermarriages  with  whites,  but  they  denied 
to  the  unfortunate  race  the  right  to  settle   within  their 


12 

limits,  on  pain  of  fine,  imprisonment,  and  expulsion.  It 
is  needless  to  recite  in  detail  the  barbarous  codes  of  these 
free  States.  Their  constitutions  and  statutes  relating  to 
the  negro  seem  to  have  been  plagiarized  from  those  of 
South  Carolina  and  Mississippi;  and  they  never  relented, 
with  trifling  exceptions,  until  since  the  close  of  the  war. 

Even  Kansas  and  Nebraska,  those  twin  children  and 
first-born  of  the  great  anti-slavery  revolution,  excluded 
negroes  from  the  polls,  and  prohibited  intermarriages  be- 
tween the  races. 

These  indisputable  facts  of  history,  drawn  from  the  sta- 
tute-books of  the  northern  States,  demonstrate  the  ab- 
surdity of  Mr.  Sumner's  statement,  that  what  Story,  Par- 
sons, and  Kent  lay  down  as  the  law  of  England  in  regard 
to  innkeepers,  is  also,  as  a  matter  of  course,  the  law  of 
the  United  States. 

The  idea  that  a  class  of  men  who  could  not  vote  nor 
testify  against  a  white  person,  nor  intermarry  with  white 
people,  had  at  the  same  time  a  legal  right  to  be  received 
into  any  hotel  or  theater,  is  preposterous.  In  the  north- 
western States,  as  I  have  shown  above,  negroes  were  not 
even  allowed  to  settle,  much  less  to  demand  entrance  into 
a  hotel.  The  law  made  it  necessary  for  them  to  skulk  and 
conceal  themselves  from  the  faces  of  men. 

The  emphatic  declaration  of  Mr.  Sumner,  that  Ameri- 
can innkeepers  are,  and  have  been,  from  the  days  of  Kent 
and  Story,  bound  by  law  to  receive  all  travellers  of  Afri- 
can descent  if  they  are  able  to  pay  their  way,  is,  therefore, 
untrue  in  point  of  fact,  and  he  can  only  mean  by  it,  that 
they  ought  of  right  to  be  thus  bound. 

But  I  have  closely  examined  his  authorities,  and  I  find 
in  them  other  interesting  statements  in  regard  to  inn- 
keepers, to  which  I  propose  to  call  attention.  I  do  so  be- 
cause he  has  failed  to  state,  in  the  first  place,  that  the 
Roman  or  civil  law  differed  from  the  common  law,  in  that 
it  did  not  require  an  innkeeper  to  receive  all  travellers, 
but  left  the  matter  to  his  discretion.  In  the  second  place, 
he  fails  to  explain  why  the  common  law,  though  borrowed 
largely  from  the  civil,  as  it  regards  bailment,  differed  from 
it  in  this  respect.     Judge  Story,  in  the  same  treatise  and 


13 

chapter  quoted  by  Mr.  Sumner,  makes  the  following  state- 
ment : 

"By  the  common  law  {which  in  this  respect  differs  from 
1  the  Roman  law)  an  innkeeper  is  not,  if  he  has  suitable 
'room,  at  liberty  to  refuse  to  receive  a  guest  who  is  ready 
1  and  able  to  pay  him  a  suitable  compensation." 

I  find  the  same  statement  in  other  authors;  but  Story  is 
sufficient  authority.  In  another  place  he  quotes  the  Roman 
TTlpian  in  support  of  an  edict,  which  held  innkeepers  to  a 
rigid  account  for  the  goods  of  their  guests,  on  the  ground 
that  they  were  under  no  obligation  to  receive  them,  and 
therefore  voluntarily  contracted  to  take  care  of  them.  The 
Roman  law  was  based  on  the  common-sense  principle,  that 
innkeepers  have  their  rights  as  well  as  other  people;  and 
that  to  force  all  sorts  of  vulgar  and  disreputable  people 
upon  them  would  be  unjust.  If  inns  were  set  up  by  Gov- 
ernment, or  if  their  keepers  enjoyed  any  peculiar  privi- 
leges at  the  expense  of  the  general  public,  there  would  be 
reason  for  the  exaction  that  they  shall  entertain  all  comers. 
But  in  the  absence  of  any  such  public  endowment  or  privi- 
leges, the  requirement  that  a  private  citizen,  in  his  own 
house,  upon  his  own  ground,  shall  receive  and  entertain 
all  who  call,  and  be  responsible  for  their  goods,  whether 
he  will  or  no,  is  tyranny,  however  time-honored. 

I  will  now  proceed  to  show  how  this  requirement  came 
to  be  made  of  English  innkeepers,  and  that  the  reason  for 
it  has  ceased  to  exist.  I  find  the  following  statement  in 
another  of  Mr.  Sumner's  authorities — Chambers'  Encyclo- 
pedia. It  immediately  follows  the  passage  quoted  by  him, 
and  is  a  part  of  the  same  paragraph.  It  is  said  that  if  an 
innkeeper 

"  'Sets  up  a  new  inn  where  there  is  no  need  of  one,  to 
1  the  hindrance  of  ancient  well-governed  inns,  he  is  iu- 
'  dictable  andfineable,  and  by  statute  such  inn  may  be  sup- 
*  pressed.'" 

I  find  the  same  fact  stated  in  Hawkins'  Pleas  of  the 
Crown,  which  is  a  higher  authority  than  the  Encyclopedia. 
It  is  therefore  certain,  that  the  obligation  imposed  by  the 
common  law  upon  innkeepers,  requiring  them  to  enter- 
tain all  travellers  who  call,  was  not  in  its  origin  an  arbi- 


14 

trary  freak,  but  a  reasonable  exaction,  in  consideration  of 
the  exclusive  monopoly  they  enjoyed.  The  innkeeper 
was  a  favorite  of  Government,  and  was  defended  against 
competition,  on  the  condition  that  he  would  engage  to  en- 
tertain all  travellers  who  might  call.  But  this  exclusive 
privilege,  which  was  the  reason  of  the  requirement,  has 
long  since  passed  away  in  England,  and  perhaps  never 
existed  in  any  part  of  this  country. 

The  reason  for  the  law  having  ceased,  the  law  itself 
should  cease,  according  to  a  well-settled  principle  of  juris- 
prudence. It  is  unjust  to  enforce  the  condition,  after  the 
monopoly,  which  was  the  consideration  for  it,  has  been 
taken  away.  Every  man  who  chooses  can  now  set  up  an 
inn  or  hotel,  when  and  where  he  pleases,  just  as  he  may 
set  up  a  store  or  a  work-shop.  It  is  competent  for  colored 
men  to  set  up  hotels  or  inns  all  over  the  country,  and  in 
fact  they  do  have  their  boarding  houses,  and  sometimes 
their  hotels.  In  every  city  and  village  they  are  to  be 
found;  and  there  is  not  a  wayside  station  on  the  railroads 
where  refreshments  may  not  be  had. 

Admit  that  a  colored  man  in  travelling  suffers  incon- 
venience, still,  it  is  only  an  inconvenience;  and  it  is  not  at 
all  comparable  with  the  inconvenience  which  would  be 
suffered  by  a  white  family,  if  compelled,  on  pain  of  aban- 
doning perhaps  the  pursuit  of  a  lifetime,  to  entertain  a 
black  man,  to  take  him  to  their  tables,  their  parlors,  and 
lodge  him  in  their  beds.  Neither  is  the  inconvenience 
suffered  by  black  men  "  on  account  of  race,  color,  or  previ- 
ous condition  of  servitude,"  to  be  compared  with  that  of 
the  still  greater  number  of  white  men,  who  would  be  turned 
away,  with  disdain,  from  any  fashionable  hotel  in  New 
England,  on  account  of  poverty  and  plainness  of  dress. 
If  the  innkeeper  has  no  rights  which  travellers  are  bound 
to  respect,  I  see  no  reason  why  he  should  not  be  made  to 
entertain  those  who  belong  to  the  numerous  class  of  labor- 
ing white  poor,  as  well  as  the  very  small  class  of  colored 
men  who  have  means.  All  over  the  South,  as  well  as  the 
greater  part  of  the  North,  owing  to  the  prejudice  against 
color,  innkeepers  would  prefer  to  entertain  ten  poor  white 
men,  to  one  well-to-do  black  man. 

I  am  not  attempting  to  justify  the  prejudice  against 
color.  I  only  maintain  that  it  exists  ;  that  it  is  one  of  the 
controlling  sentiments  of  the  people ;  that  religious  con- 
victions are  not  stronger;  and'that  while  it  should  not  be 
allowed  to  trespass  on  the  rights  of  others,  the  attempt 
should  not  be  made  in  the  name  of  law  to  conquer  it. 
We  are  all  prone  to  regard  the  religious  sentiments  of 
those  who  differ  from  us  as  more  or  less  the  result  of  pre- 


15 

judice,  yet  there  is  no  right  which  the  Constitution  and 
laws  more  studiously  protect  than  the  enjoyment  of  these 
diverse  notions  of  religion.  In  like  manner  social  preju- 
dices, whether  well  or  ill-grounded,  are  held  of  right,  and 
cannot  he  legislated  away.  Mr.  Sumner  is  willing  to  leave 
nothing  to  time,  but  would  level  all  distinctions  by  statute. 
We  owe  to  our  fellow-men  and  to  society,  high,  impera- 
tive, sacred  duties,  which  law  cannot  enforce  nor  attempt 
to  enforce  without  becoming  tyrannical.  The  scope  and 
province  of  law  is  to  prevent  men  from  injuring  each  other. 
The  office  of  religion  is  to  teach  them  to  love  one  another. 
The  attempt  to  enforce  uniformity  in  religion  has  never 
failed  to  lead  to  tyranny  in  the  Government  and  cor- 
ruption in  the  Church;  and  all  efforts  to  enforce  kindness 
and  good-fellowship  in  the  name  of  "equality"  must 
begin  with  a  despotic  intermeddling  in  private  affairs,  and 
end  in  greater  alienation  of  classes. 

Hotels  or  inns  are  private  property.  The  State  con- 
tributes nothing  to  their  establishment,  gives  them  no 
exclusive  privilege,  and  does  nothing  for  them  more  than 
it  does  for  private  residences.  On  the  contrary,  the  State 
levies  a  special  tax  on  inns,  as  such,  which  is  certainly  not 
a  mark  of  special  regard  or  favor;  and  yet  this  is  the  sole, 
preposterous,  ground  for  the  exaction  that  they  shall  re- 
ceive and  entertain  all  travellers.  The  principle  has  never, 
as  I  have  shown,  been  carried  to  the  extent  of  compelling 
white  innkeepers  to  receive  black  travellers.  It  ought  not 
to  be  required  in  any  case.  The  reason  which  gave  rise  to 
the  custon  has  ceased  to  exist,  as  explained  above;  and  the 
principle  of  the  Roman  law  should  be  adopted.  In  fact, 
as  we  all  know,  innkeepers  never  take  in  unwelcome 
guests  in  this  country.  They  are  always  willing  to  receive 
white  persons  of  respectable  appearance;  and  they  reject 
with  disdain  an  applicant  for  lodging,  though  he  may  be 
honest  and  worthy,  if  his  dress  and  appearance  indicate 
that  he  moves  in  a  sphere  much  below  the  average  guests 
of  the  house.  A  hod-carrier  or  other  common  laborer 
would  be  turned  adrift  from  the  fashionable  hotels  of  Bos- 
ton, and  he  would  have  no  redress;  but  under  Mr.  Sum- 
ner's bill,  the  rejection  of  a  colored  applicant  would  be  a 
dangerous  experiment.  His  presence,  though  well  dressed, 
and  with  a  pocket  full  of  money,  would  be  as  little  wel- 
come as  that  of  the  hod-carrier;  but  as  the  representative 
of  a  race,  whose  rights  are  guarded  by  special  laws,  and 
by  well-organized  associations,  he  would  become  a  formida- 
ble suitor  in  court. 

If  this  bill  of  "  equality"  should  become  a  law,  there 
could  be  no  evasion  of  its  provisions  by  inn  or  hotel-keep- 


16 


ers,  as  some  have  vainly  imagined.  They  would  not  cease 
to  be  innkeepers  by  taking  down  their  signs  and  surrender- 
ing their  licenses.  It  is  a  well-settled  principle  of  Ameri- 
can as  well  as  English  law,  that  neither  the  sign  nor  the 
license  is  necessary  to  make  a  house  an  inn.  If  a  man  is 
in  the  habit  of  receiving  travellers  into  his  house,  and  re- 
quiring pay  for  the  same,  those  facts  constitute  him  an  inn- 
keeper. Every  boarding  house  in  the  land  which  is  in  the 
habit  of  receiving  transient  guests — and  there  are  few  that 
do  not— would  be  bound  by  this  law  of  "equality."  Let 
no  one,  therefore,  flatter  himself  that  he  can  escape  by  the 
evasion  of  taking  down  his  sign,  or  surrendering  a  license. 

As  it  regards  churches,  Masonic  and  Odd  Fellows' 
lodges,  and  theaters,  it  is  not  pretended  by  Mr.  Sumner 
that  either  in  England  or  America  any  common-law  right 
of  admission  for  all  comers  has  existed;  but  in  violation 
of  individual  and  social  rights  he  proposes,  in  the  name  of 
"equality,"  to  open  these  institutions  to  the  public.  Their 
very  nature  and  constitution  make  them  exclusive.  They 
are  only  associations  of  individuals,  and  they  have  a  right 
to  be  exclusive.  There  exists  the  same  right  to  compel  a 
banking  or  mercantile  association  to  take  in  an  unwel- 
come partner,  as  there  does  to  constrain  a  church,  a 
lodge,  or  a  theater,  to  receive  an  unwelcome  member  or 
attendant.  If  the  church  were  a  part  of  the  State,  as  in 
European  monarchies,  there  would  be  reason  for  such  a 
law  of  "equality." 

Equality  before  the  law  is  the  plea  for  these  various 
tyrannical  invasions  of  the  rights  of  individuals  and  classes. 
But  equality  must  not  supplant  liberty. 

An  enforced  equality  becomes  the  most  galling  despot- 
ism. There  is  no  right  more  sacred  than  that  of  choos- 
ing one's  associates  and  guests.  There  is  no  right  so 
essential  to  the  existence  of  virtuous  and  honorable  society. 
It  involves  the  purit}^,  refinement,  and  elevation  of  females; 
the  moral  training  of  children  ;  and  the  whole  happiness 
and  respectability  of  families.  A  man  could  live  under 
any  of  the  known  despotisms  of  the  Old  World,  and  enjoy 
this  sacred  right.  He  might  be  a  subject  of  the  Czar,  th^ 
Sultan,  or  the  Emperor  of  China,  without  forfeiting  it; 
but  under  Mr.  Sumner's  cruel  and  remorseless  law  of 
"  equality,"  he  must  surrender  the  inestimable  privilege  at 
the  church-door,  at  the  lodge,  at  the  club-room,  at  the  the- 
ater, and  at  the  hotel.  There  is  no  tyranny  so  searching, 
so  galling,  and  so  degrading  as  this  doctrine  of"  equality" 
imbodied  in  this  bill,  which  pursues  its  victims  from  the 
cradle  to  the  grave.  Jeffekson. 

McGlLL  &  WlTHEROW,  PRINTERS,  WASHINGTON,  D.  C. 


Photomount 

Pamphlet 

Binder 

Gaylord  Bros. 

Makers 

Syracuse,  N.  Y. 

PH.  JAN  21, 1908 


II, 

TTH  13dVH3  IV  0  N  dd  AllSa3/ 


